Kevin Arick Brice O'dell v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-20-00502-CR

Kevin Arick O’DELL, Appellant

v.

The STATE of Texas, Appellee

From the 198th Judicial District Court, Bandera County, Texas Trial Court No. CR-20-010 Honorable M. Rex Emerson, Judge Presiding

PER CURIAM

Sitting: Rebeca C. Martinez, Chief Justice Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: January 27, 2021

DISMISSED FOR LACK OF JURISDICTION

On September 28, 2020, appellant Kevin Arick O’Dell filed with the trial court clerk a pro

se request for forms seeking to appeal an order of deferred adjudication. A copy of O’Dell’s

request for forms was filed with our court and docketed as a notice of appeal.

A timely notice of appeal is necessary to invoke this court’s jurisdiction. Olivo v. State,

918 S.W.2d 519, 522 (Tex. Crim. App. 1996). In absence of a timely motion for new trial, a

defendant must file a notice of appeal within thirty days after the day the trial court enters an

appealable order. TEX. R. APP. P. 26.2(a). A late notice of appeal may be considered timely so as 04-20-00502-CR

to invoke our jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2)

a motion for extension of time is filed in the court of appeals within fifteen days of the last day

allowed for filing the notice of appeal, and (3) the court of appeals grants the motion for extension

of time. See Olivo, 918 S.W.3d at 522.

In this case, the clerk’s record shows the trial court signed an order of deferred adjudication

pursuant to a plea bargain on February 12, 2020. O’Dell did not file either a timely motion for

new trial or motion for extension of time to file the notice of appeal. See TEX. R. APP. P. 26.2(a),

26.3. Therefore, his notice of appeal was due by March 13, 2020, but was not filed until September

28, 2020.

Because O’Dell did not timely file a notice of appeal, we ordered his court appointed

attorney to show cause why this appeal should not be dismissed for lack of jurisdiction. See TEX.

CODE CRIM. PROC. ANN. art 26.04 (providing court appointed counsel represents appellant until

his appeal is exhausted or until the trial court grants appointed counsel the right to withdraw and

appoints new counsel). Counsel filed a response admitting the notice of appeal is untimely and

this court does not have jurisdiction over this appeal.

Because O’Dell did not timely file the notice of appeal, we lack jurisdiction to entertain

this appeal. See Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App. 1998) (holding that if

appeal is not timely perfected, court of appeals does not obtain jurisdiction to address merits of

appeal, and court may take no action other than to dismiss appeal; court may not suspend rules to

alter time for perfecting appeal); Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996); see

also Ater v. Eighth Court of Appeals, 802 S.W.2d 241 (Tex. Crim. App. 1991) (explaining that

writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure governs

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out-of-time appeals from felony convictions). We therefore dismiss this appeal for lack of

jurisdiction. 1

Do Not Publish

1 Even if appellant had timely appealed, this appeal must be dismissed because the trial court's certification stated this “is a plea-bargain case, and the defendant has NO right of appeal” and “the defendant has waived the right of appeal.” See TEX. R. APP. P. 25.2(a)(2). The clerk's record supports the trial court's certification. See Dears v. State, 154 S.W.3d 610, 615 (Tex. Crim. App. 2005).

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